EXHIBIT 10.15
SETTLEMENT AGREEMENT
This settlement agreement (the "Agreement") is made effective as of the
___ day of August, 2003 by and between Xxxxxxxxx Holding Corporation, a Delaware
corporation ("DHC") and Xxxxxxx X. Xxxxx ("Xxxxx").
RECITALS
1. Xxxxx is the President and Chief Executive Officer of American
Commercial Lines LLC ("ACL"), a subsidiary of DHC, and has announced his
intention to retire, effective as of October 31, 2003 (the "Retirement Date"),
from all offices and other positions with ACL and its affiliated and subsidiary
entities, other than Xxxxx'x position as a director of ACL, and to resign,
effective as of the date of this Agreement, from its parent entities and from
Vessel Leasing LLC.
2. Xxxxx is a participant in DHC's 1995 Stock and Incentive Plan
(the "Plan"). Xxxxx also holds shares of restricted DHC stock pursuant to that
certain Restricted Stock Agreement between Xxxxx and DHC dated as of May 29,
2002 ("Restricted Stock Agreement").
3. Xxxxx and DHC wish to resolve all outstanding matters between
them in a mutually acceptable way.
NOW THEREFORE, in consideration of the mutual promises contained
herein, the parties hereto agree as follows:
1. Stock Option Agreement. All capitalized, defined terms used in
this Section 1 shall have the meanings ascribed to them in the stock option
agreement (hereinafter the "Stock Option Agreement") dated as of July 24, 2002,
by and between Xxxxx and DHC.
(a) Time Vesting Options. The parties acknowledge that 26,250 Time
Vesting Options vested on May 29, 2003.
(b) Other Options. The parties further acknowledge that no EBITDA
Options or Compliance Options have vested.
(c) Termination of Employment. The parties agree that the
retirement of Xxxxx shall be deemed to constitute a termination of employment,
as set forth in Section 6 of the Stock Option Agreement. Notwithstanding such
termination, DHC hereby agrees to extend for a one (1) year period commencing on
the Retirement Date and terminating October 31, 2004 (the "Option Extension
Period) during which Xxxxx is eligible to exercise the Option to purchase the
vested Time Vesting Options, at the purchase price set forth in Section 2 of the
Stock Option Agreement, with the Option being exerciseable in accordance with
all of the relevant terms of the Stock Option Agreement. All Options which have
not vested prior to the date hereof are hereby cancelled and no additional
Options shall be eligible for vesting following the date hereof.
2. Restricted Stock Agreement. All capitalized, defined terms
used in this Section 2 shall have the meanings ascribed to them in the
Restricted Stock Agreement.
(a) Lapse of Restrictions. The parties acknowledge that the
restrictions upon transfer with respect to 30,098 shares of Restricted Stock
lapsed on May 29, 2003 and vested with Xxxxx (the "Vested Restricted Stock") and
restrictions upon transfer with respect to 60,195 shares of Restricted Stock
remain and are unvested (the "Unvested Restricted Stock") as of the date hereof.
(b) Termination of Employment. The parties agree that the
retirement of Xxxxx shall be deemed to constitute a termination of employment,
as set forth in Section 3 of the Restricted Stock Agreement. Accordingly,
pursuant to the Restricted Stock Agreement, as of the Retirement Date, Xxxxx
shall forfeit the Unvested Restricted Stock, and DHC shall pay to Xxxxx an
amount equal to $51,165.70 reflecting the difference between the payment by DHC
of $60,195 in consideration of the cancellation of the Unvested Restricted Stock
pursuant to Section 3 of the Restricted Stock Agreement less $9,029.30 required
to be paid by Xxxxx (but not previously paid) pursuant to Section 1 of the
Restricted Stock Agreement.
3. Retirement and Resignation. Xxxxx shall resign, effective as
of the Retirement Date from all offices and other positions with ACL's
affiliated and subsidiary entities and as of the date of this Agreement from all
offices and positions with ACL's parent entities and Vessel Leasing LLC.
4. Release, Exculpation and Waiver. As used in this Section 4,
the terms "Related Parties," and "Claims" shall have the meaning ascribed to
such terms in the Mutual Release (the "Mutual Release") dated as of May 29,
2002, to which DHC, Xxxxx, and multiple other parties are party.
(a) Release. DHC and Xxxxx, each for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, by
these presents does for itself and for each of its Related Parties (each, a
"Releasor" and, collectively, the "Releasors"), hereby expressly,
unconditionally, generally, and individually and collectively waive, release,
acquit and forever discharge one another and each other, and each of their
respective Related Parties (collectively, the "Releasees") from every, any, and
all Claims, which Claims against the Releasees, jointly or severally, any
Releasor ever had, now has, or hereafter can, shall or may have, for, upon or by
reason of any matter, act, failure to act, transaction, event, occurrence,
cause, or thing whatsoever from the beginning of the world to the day of the
date of this Release (the "Release Date") directly or indirectly relating to or
arising out of American Commercial Lines Holdings, LLC ("ACL Holdings"), its
wholly-owned subsidiary ACL, and/or ACL's affiliated, parent and subsidiary
entities; provided, however, that nothing herein shall release any obligation of
DHC or its Related Parties to indemnify its current and former directors, board
of representatives members, or officers under its organizational documents,
by-laws, employee-indemnification policies, state law, or any other agreement.
(b) Exculpation. DHC and Xxxxx and their respective Related
Parties hereby exculpate one another and each other and each of their respective
Related Parties from, and agree that each shall have and incur no liability to,
nor be subject to any right or action by one another for acts, events or
occurrences prior to the Release Date which directly or indirectly arise out of
or are related to ACL Holdings, ACL and/or ACL's affiliated, parent and
subsidiary entities; provided, however, that nothing herein shall exculpate DHC
from any obligation to indemnify its
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current and former directors, board of representatives members, or officers
under its organizational documents, by-laws, employee-indemnification policies,
state law, or any other agreement.
(c) Waiver. DHC and Xxxxx intend that this Release be effective as
a full and final accord and satisfactory release of each and every matter
specifically or generally referred to herein. Each party waives and relinquishes
any rights and benefits to the full extent that they may lawfully waive all such
rights and benefits pertaining to the subject matter of this Agreement. Each
party acknowledges that it is aware that it may later discover facts in addition
to or different from those which they now know or believe to be true with
respect to the subject matter of this Release, but it is their intention to
fully and finally forever settle and release any and all matters, disputes and
differences, known and unknown, suspected and unsuspected, which now exist, may
later exist or may previously have existed between them, and that in furtherance
of this intention, the releases given in this Agreement shall be and remain in
effect as full and complete general releases notwithstanding discovery or
existence of any such additional or different facts.
5. Governing Law. This Release shall be governed by and construed
in accordance with the internal laws of the State of Delaware, without regard to
any conflicts of law provision that would require the application of the law of
any other jurisdiction.
6. Entire Agreement. This Agreement shall constitute the entire
agreement between Xxxxx and DHC relating to the subject matter hereof, and may
not be amended, modified, or supplemented, and no provision hereof may be
waived, in whole or in part, without the written agreement of Xxxxx and DHC.
7. Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
DHC and Xxxxx.
8. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
9. No Presumption Against Drafter. Each of the parties has
jointly participated in the negotiation and drafting of this Agreement. In the
event of any ambiguity or a question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by each of the parties and no
presumptions or burdens of proof shall arise favoring any party by virtue of the
authorship of any of the provisions of this Agreement.
10. Further Assurances. In addition to the provisions of this
Agreement, from time to time after the date of this Agreement, the parties
hereto shall use all commercially reasonable efforts to execute and deliver such
other instruments, documents, certificates, applications or agreements, as the
case may be, and take such other reasonable actions as are necessary or
desirable to effectuate the intent of this Agreement and to effectively evidence
or implement the transactions contemplated under this Agreement.
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IN WITNESS WHEREOF, and intending to be legally bound, Xxxxx and DHC
have each executed this Agreement, after a due reading of the whole.
XXXXXXX X. XXXXX
_________________________________
Dated: __________________________
XXXXXXXXX HOLDING CORPORATION
By: _____________________________
Title:
Dated: ______________________
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